Music publishers go AWOL in the war against YouTube

For four years, a coalition of copyright holders has been prosecuting a …

The National Music Publishers' Association has decided to drop out of a broad coalition of copyright owners that has been doing battle with YouTube since 2007. YouTube won the first round of the lawsuit last year, and the case is now being appealed; it will apparently continue without the NMPA's participation.

Recorded music is subject to two distinct copyrights. The sound recording right is typically held by a record label like those represented by the RIAA. But the composer of the song has a distinct copyright interest, and the NMPA represents 2500 publishers that publish the work of songwriters.

In 2007, the NMPA decided to join a coalition of anti-YouTube plaintiffs that also included several sports leagues and other copyright holders. Their lawsuit was eventually consolidated with Viacom's case, leading to a single massive suit against the Internet's leading video site.

Google won at the trial court level in the Viacom case last year. The judge ruled that the company's record of promptly removing videos upon request from copyright holders gave Google immunity under the DMCA's "safe harbor." Viacom has vowed to appeal the ruling to the United States Court of Appeals for the Second Circuit.

But the NMPA waved the white flag in a Wednesday press release. "Music publishers will have the opportunity to enter into a License Agreement with YouTube and receive royalties from YouTube for musical works in videos posted on the site," the group says.

James Grimmelmann, a professor at New York Law School, called the development a win for Google. Notably missing is any mention of Google paying the NMPA or its members for past infringement. Indeed, Grimmelmann noted that the description sounds similar to the revenue-sharing program Google already offers to other categories of copyright holders. Hence, he said, "it really appears that Google gave up nothing as part of the 'settlement.'"

We asked NMPA for their thoughts, and they responded with a terse statement from president David Israelite: "The licensing arrangement being offered to independent music publishers has never been available before now," he said. Conveniently, the terms of the agreement are confidential.

Update: Our original story stated that the Viacom and NMPA cases were consolidated, but Viacom tells us that the cases remain separate. We regret the error.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.